Citation Nr: 0731226
Decision Date: 10/03/07 Archive Date: 10/16/07
DOCKET NO. 04-15 195 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for a disability manifested
by a sore throat and coughing up blood.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Stephanie L. Caucutt, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1968 to
March 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2003 rating determination of
a Regional Office (RO) of the Department of Veterans Affairs
(VA) in Muskogee, Oklahoma. The Board remanded this appeal
in October 2006 for additional development; it has reviewed
the expanded record and concludes that this appeal is now
ready for a decision.
The veteran requested that his appeal be advanced on the
docket; his request was denied, and he was informed of the
Board's decision in a July 2005 letter.
FINDING OF FACT
The competent evidence does not demonstrate that the veteran
has a disability manifested by a sore throat and coughing up
blood that manifested during active service or is otherwise
related to such service.
CONCLUSION OF LAW
A disability manifested by a sore throat and coughing up
blood was not incurred in or aggravated by the veteran's
active duty service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107
(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA's Duties to Notify and Assist
Under the Veterans Claims Assistance Act (VCAA), when VA
receives a complete or substantially complete application for
benefits, it must notify the claimant of the information and
evidence not of record that is necessary to substantiate a
claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide. 38 U.S.C.A. § 5103(a) (West 2002). VA must
request that the claimant provide any evidence in the
claimant's possession that pertains to a claim. 38 C.F.R. §
3.159 (2007). See also Pelegrini v. Principi, 18 Vet. App.
112, 120-21 (2004) (Pelegrini II).
After careful review of the claims folder, the Board finds
that a letter dated in December 2002 fully satisfied the duty
to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). This letter advised the veteran what information and
evidence was needed to substantiate the claim decided herein
and what information and evidence must be submitted by him,
namely, any additional evidence and argument concerning the
claimed condition and enough information for the RO to
request records from the sources identified by the veteran.
In this way, he was advised of the need to submit any
evidence in his possession that pertains to the claim. He
was specifically told that it was his responsibility to
support the claim with appropriate evidence. Finally the
letter advised him what information and evidence would be
obtained by VA, namely, records like medical records,
employment records, and records from other Federal agencies.
The December 2002 letter was sent to the veteran prior to the
April 2003 rating decision. The VCAA notice was therefore
timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004).
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in Dingess v. Nicholson, 19 Vet. App.
473, 484 (2006), which held that the VCAA notice must include
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded. A February 2007 letter was sent to the veteran
providing such notice.
In light of the above, the Board finds that all notices
required by VCAA and implementing regulations were furnished
to the veteran and that no useful purpose would be served by
delaying appellate review to send out additional VCAA notice
letters.
The Board finds that VA has also fulfilled its duty to assist
the veteran in making reasonable efforts to identify and
obtain relevant records in support of the veteran's claims
and providing a VA examination when necessary. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2007). In this regard,
the veteran's service medical records are associated with the
claims folder, as well private treatment records submitted by
the veteran. The veteran indicated that he received
treatment for his claimed disability at VA facilities in
Fayetteville, Arkansas, Houston, Texas, Los Angeles County,
California, and Orange County, California. Records from VA
medical facilities in Fayetteville, Arkansas, Oklahoma City,
Oklahoma, Loma Linda, California, and Houston, Texas are of
record, as is a negative reply from the Los Angeles VA
Medical Center (MC). Attempts were made to obtain records
from the VA medical facilities located in Orange County,
California; however, a February 2007 letter is associated
with the claims folder indicating that no records were found
for the veteran. The veteran has not identified any
additional relevant, outstanding records that need to be
obtained before deciding his claim.
The Board remanded this appeal in October 2006, in part, to
afford the veteran a VA examination. However, he failed to
appear for his examination scheduled for April 2007. Records
indicate that notification of the appointment was sent to the
veteran's current address at that time. The veteran did not
provide any reason for his failure to report for his
scheduled examination, nor has he contacted VA since the
examination was scheduled to explain why he did not attend.
In light of the foregoing, the Board finds that VA has
developed all relevant facts to the extent possible; no
further assistance to the veteran in developing the facts
pertinent to the issue of service connection is required to
comply with the duty to assist under the VCAA. 38 U.S.C.A.
§§ 5103 and 5103A; 38 C.F.R. § 3.159. The notice of the
consequences of failure to report for examination as set
forth in the May 2007 supplemental statement of the case is
sufficient to invoke 38 C.F.R. § 3.655 without violating the
safeguard against unfair prejudice set forth in Bernard v.
Brown, 4 Vet. App. 384 (1993). 38 C.F.R. § 3.655 (2007)
(when a claimant fails to report for an examination scheduled
in conjunction with an original compensation claim, the claim
shall be rated based on the evidence of record). As the
veteran has not contacted VA with regards to his original
compensation claim, except through argument presented by his
representative, since the Board's October 2006 Remand, no
further action by VA to attempt to develop the claim is
warranted.
Analysis
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007).
That an injury occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Service connection may also be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R. §
3.303(d).
The veteran contends that he has a current disability
manifested by a sore throat and occasional coughing up of
blood that is related to his active duty service. In a March
2003 letter, he indicated that his medical records show he
has Barrett's esophagus, and that doctors informed him it was
caused by years of gas from his stomach burning up his
esophagus. The veteran also states in multiple letters to
the RO that his service medical records clearly show that he
presented for complaints of a sore throat and coughing up
blood while in service.
A review of the veteran's service medical records reflects
that he was evaluated in April 1968 for complaints of any
unidentified nature. The examiner noted that an X-ray showed
an ulcer in the veteran's stomach. In August 1968, the
veteran presented for complaints of abdominal pain, and the
examiner noted a nine month history of epigastric pain. The
examiner indicated that he reviewed the April 1968 upper
gastrointestinal series (UGI), which showed a deformed bulb,
but no active crater. It was noted that the veteran reported
traces of blood in his vomit. A diagnosis of "probably
active peptic ulcer disease" was noted. The next day, the
veteran presented for complaints of fever, general malaise, a
sore throat, and epigastric pain. This examiner also noted
the April 1968 UGI, and confirmed the previous findings of a
deformed duodenal bulb with no active ulceration. Diagnoses
of acute pharyngitis, probably strep throat, and peptic ulcer
disease were provided. The veteran reported vomiting blood
two days later, and was then admitted to the hospital. The
veteran's February 1970 separation examination notes no
gastrointestinal or gastroesophageal abnormalities, nor any
throat abnormalities. Thus, a chronic peptic disease is not
shown from the veteran's service records. Additionally,
there is no evidence of a chronic peptic disease, including
ulcers, within one year of service separation. Thus,
presumptive service connection is not warranted. See
38 C.F.R. §§ 3.307, 3.309 (2007).
Post-service separation, in August 1993, the veteran had
another UGI at the Loma-Linda VA Medical Center. The
radiologist noted a history of peptic ulcer disease with
persistent epigastric pain. Findings revealed an otherwise
normal esophagus, with the exception of a small sliding
hiatal hernia with minimal gastroesophageal reflux and a
duodenal bulb with lack of tone and marked deformity. The
diagnoses noted were a small sliding hiatal hernia with mild
gastroesophageal reflux and a deformed duodenal bulb
consistent with chronic peptic ulcer disease. The
radiologist opined that the possibility of recent
reactivation of peptic ulcer disease was difficult to exclude
on the basis of this exam alone. A September 1993 VA
treatment record notes a history of alcoholism and ulcers;
the diagnosis provided is alcoholic gastritis. The veteran
underwent an endoscopic procedure approximately one year
later, and the results of that procedure revealed a
completely healed duodenal ulcer of the duodenal bulb.
The last mention of any duodenal bulb deformity or ulceration
is the August 1993 UGI study. More recent medical evidence
is absent any evidence of a current peptic disease. Thus,
service connection cannot be granted for peptic disease as
there is no evidence of a chronic disease. See Degmetich v.
Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability"
means a disability shown by competent medical evidence to
exist at the time of the award of service connection);
Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence
of proof of a present disability, there can be no valid claim
for service connection as Congress has specifically limited
entitlement to service connection to cases where such
incidents have resulted in a disability). However, the
veteran's current medical records show that he has been
diagnosed as having Barrett's esophagus, acute gastritis, a
hiatus hernia, and yeast esophagitis. See October 2003
esophagus biopsy report; see also October 2004 Lindsay
Municipal Hospital treatment report.
The Board observes that it is prohibited from exercising its
own independent judgment to resolve medical questions See
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore,
although the competent evidence demonstrates that the veteran
has had chronic gastroesophageal problems since 1993, the
Board may not infer from such evidence that his current
chronic diseases, including Barrett's esophagus, hiatus
hernia, and yeast esophagitis, are related to his in-service
peptic disease. Id. However, service connection may be
granted if the competent evidence demonstrates that any of
the these diseases is related to the veteran's active
service, including his in-service diagnosis of peptic
disease. 38 C.F.R. § 3.303(d).
As discussed above, the Board remanded this appeal in October
2006 as there was insufficient medical evidence regarding the
issue of whether any of the veteran's current
gastroesophageal problems, including Barrett's esophagus,
hiatus hernia, gastritis, and yeast esophagitis, were related
to his in-service complaints and/or diagnosis of peptic
disease. Unfortunately, the veteran failed to report for his
scheduled VA examination and the Board is left with no
competent evidence tending to establish that his in-service
peptic disease resulted in his current sore throat and
coughing up blood or Barrett's esophagus, hiatus hernia,
gastritis, or yeast esophagitis. Unfortunately, the
veteran's lay opinions cannot be accepted as competent
evidence to the extent that they purport to establish such
medical causation. See Espiritu v. Derwinski, 2 Vet. App.
492, 494-5 (1992).
The Board considered whether to afford the veteran the
benefit of the doubt. 38 U.S.C.A. § 5107(b) (West 2002).
However, as there is no competent evidence indicating a
relationship between any current disability manifested by a
sore throat and coughing up blood and any in-service
complaints or treatment for peptic disease, a preponderance
of the evidence is against the veteran's claim and the
benefit of the doubt rule does not apply. Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990). As such, the veteran's
claim must be denied.
CONTINUED ON NEXT PAGE...
ORDER
Entitlement to service connection for a disability manifested
by a sore throat and coughing up blood is denied.
____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs